Police investgations and Professional negligence

Dr. Ruwantissa Abeyratne

On 4 October 2007, the Supreme Court of Canada handed down its decision in Hill v. Hamilton- Wentworth Regional Police Services Board et.al. to the effect that the police are not immune from liability under the law of negligence.

The Court also held that police officers owe a duty of care to the suspects and that their conduct during an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. According to this decision, police officers may be accountable for harm resulting to a suspect if they fail to meet this standard.

In this case the appellant (referred to hereafter as H) was investigated by the police, arrested, tried, wrongfully convicted, and ultimately acquitted after spending more than 20 months in jail for a crime he did not commit.

Police officers suspected that he had committed 10 robberies. The evidence against H included a tip, a police officer's photo identification of H, eyewitness identifications, a potential sighting of H near the site of one of the robberies, and witness statements that the robber was aboriginal.

During their investigation, the police released H's photo to the media. They also asked witnesses to identify the robber from a photo line-up consisting of H, who is an aboriginal person, and 11 similar looking Caucasian foils.

The police, however, also had information that two Hispanic men, one of whom looks like H, were the robbers.

Two similar robberies occurred while H was in custody. H was charged with 10 counts of robbery but nine charges were withdrawn before trial. Trial proceeded on the remaining charge because two eyewitnesses remained steadfast in their identifications of H. H was found guilty of robbery.

He appealed and a new trial was ordered. H was acquitted at the second trial and brought a civil action that included a claim in negligence against the police based on the conduct of their investigation.

The trial judge dismissed the claim in negligence and H appealed. The Court of Appeal unanimously recognised the tort of negligent investigation, however a majority of the court held that the police were not negligent in their investigation. This resulted in an appeal to the Supreme Court where H appealed from the finding that the police were not negligent. The respondents cross appealed from the finding that there is a tort of negligent investigation.

The facts of the case were that ten robberies occurred in Hamilton, Ontario between December 16, 1994 and January 23, 1995. The modus operandi in all of the robberies seemed essentially the same. Eyewitnesses provided similar descriptions of the suspect.

The police, relying on similarities in the modus operandi and eyewitness descriptions, concluded early on in the investigation that the same person had committed all the robberies, and labelled the perpetrator the plastic bag robber.

The appellant became a suspect in the course of the investigation of the plastic bag robberies. The police investigated. They released his photo to the media, and conducted a photo line-up consisting of the aboriginal suspect H and 11 similar looking Caucasian foils. On January 27, 1995, the police arrested H and charged him with 10 counts of robbery.

The evidence against him at that point included: a Crime Stoppers tip; identification by a police officer based on a surveillance photo; several eyewitness identifications (some tentative, others more solid); a potential sighting of H near the site of a robbery by a police officer; eyewitness evidence that the robber appeared to be aboriginal (which H was); and the belief of the police that a single person committed all 10 robberies.

One of the factors which militates against the conduct of the police is that at the time of the arrest, the police were in possession of potentially exculpatory evidence, namely, an anonymous Crime Stoppers tip received on January 25, 1995 suggesting that two Hispanic men were the perpetrators.

As time passed, other exculpatory evidence surfaced. Two similar robberies occurred while H was in custody. The descriptions of the robber and the modus operandi were similar to the original robberies, except for the presence of a threat of a gun in the last two robberies.

The police received a second Crime Stoppers tip implicating another man who looked similar to H and that that man was laughing because H was being held responsible for robberies that Frank had committed.

The police detective investigating the last two robberies had received information from another officer that a person other than H could be the robber.

Also, there was evidence tending to corroborate the credibility of the Crime Stoppers tip implicating the person other than H and that photos from the first robberies seemed to look more like others implicated than H. Information from this investigation of the later robberies had been conveyed to the detective supervising the investigation of the earlier robberies.

What is Professional negligence?

The Court held that a person owes a duty of care to another person if the relationship between the two discloses sufficient foreseeability and proximity to establish a prima facie duty of care.

In the very particular relationship between the police and a suspect under investigation, reasonable foreseeability is clearly made out because a negligent investigation may cause harm to the suspect.

Establishing proximity generally involves examining factors such as the parties expectations, representations, reliance and property or other interests. There is sufficient proximity between police officers and a particularised suspect under investigation to recognize a prima facie duty of care.

The relationship is clearly personal, close and direct.

One of the most pertinent observations of the majority judgment of the Supreme Court delivered by Chief Justice McLachlin was that the standard of care of a reasonable police officer in similar circumstances should be applied in a manner that gives due recognition to the discretion inherent in police investigation.

Police officers may make minor errors or errors in judgment without breaching the standard. This standard is flexible, covers all aspects of investigatory police work, and is reinforced by the nature and importance of police investigations.

To establish professional negligence of the police in a criminal investigation and ground a cause of action, the plaintiff must show that he or she suffered compensable damage and a causal connection to a breach of the standard of care owed to him or her.

Lawful pains and penalties imposed on a guilty person do not constitute compensable loss. The limitation period for negligent investigation begins to run when the cause of action is complete and the harmful consequences result. This occurs when it is clear that the suspect has suffered compensable harm. In this case, the limitation period did not start to run until H was acquitted of all charges of robbery.

A dissenting view

The Court was faced with a two bench dissenting judgment which gave the other side of the story and adduced reason as to why principles of professional negligence should not be imposed on police investigations.

The dissent was based on the fact that a private duty of care owed by the police to suspects would necessarily conflict with an officer's overarching public duty to investigate crime and apprehend offenders.

This alone defeats the claim that there is a relationship of proximity between the parties sufficient to give rise to a prima facie duty of care. It was also contended by Justice Charron who delivered the dissenting judgment that even if a prima facie duty of care were found to exist, that duty should be obviated on residual policy grounds.

His Lordship was of the view that the recognition of this tort would have significant consequences for other legal obligations and would detrimentally affect the legal system and society more generally.

Justice Charron therefore concluded on behalf of his dissenting colleagues on the Bench that in light of the fact that the tort of negligent investigation is not available at common law, the action was properly dismissed by the courts below.

Are Police investigations Quazi Judicial?

To counter the views of the dissenting judges the majority judgment held that no compelling policy reasons negate the duty of care. Police officers are not required to and indeed should not make quasi judicial decisions as to legal guilt or innocence or to evaluate evidence according to legal standards in investigating suspects.

The discretion inherent in police work is not relevant to whether a duty of care arises, although it is relevant to the standard of care owed to a suspect. Police officers are not unlike other professionals who exercise levels of discretion in their work but who are subject to a duty of care.

Recognising a duty of care will not raise the reasonable and probable grounds standard required for certain police conduct such as arrest, prosecution, search and seizure.

The record in this case did not establish that recognizing the tort will change the behaviour of the police, cause officers to become unduly defensive or lead to a flood of litigation.

The burden of proof on a plaintiff and a defendant's right of appeal provide safeguards against any risk that a plaintiff acquitted of a crime, but in fact guilty of the crime, may recover against an officer for negligent investigation.

The Supreme Court also drew the distinction between the role of the police officer investigating a crime and that of the prosecuting officer. The Court came to the conclusion that, although there is a perception that the decision of police to pursue the investigation of a suspect on the one hand, or close it on the other, is a quasi-judicial decision, similar to that taken by the State prosecutor, and while it is true that both police officers and prosecutors make decisions that relate to whether the suspect should stand trial, the nature of the inquiry differed.

Police are concerned primarily with gathering and evaluating evidence while prosecutors are concerned mainly with whether the evidence the police have gathered will support a conviction at law. The fact-based investigative character of the police task distances it from a judicial or quasi-judicial role.

The Court also held that the possibility of holding police civilly liable for negligent investigation does not require them to make judgments as to legal guilt or innocence before proceeding against a suspect.

Police are required to weigh evidence to some extent in the course of an investigation. However, they are not required to evaluate evidence according to legal standards or to make legal judgments.

Evaluating and establishing legality is the exclusive purview of prosecutors, defence attorneys and judges. This distinction is properly reflected in the standard of care imposed, once a duty is recognized.

The standard of care required to meet the duty is not that of a reasonable lawyer or judge, but that of a reasonable police officer.

Where the police investigate a suspect reasonably, but lawyers, judges or prosecutors act unreasonably in the course of determining his legal guilt or innocence, then the police officer will have met the standard of care and cannot be held liable either for failing to perform the job of a lawyer, judge or prosecutor, or for the unreasonable conduct of other actors in the criminal justice system.

Can Police Officers Exercise Discretion ?

Whatever discretion an investigating police office, may be perceived to have in the course of his duties, the discretion inherent in police work fails to provide a convincing reason to negate the proposed duty of care.

While it is true that police investigation involves significant discretion and that police officers are professionals trained to exercise this discretion and investigate effectively, the discretion inherent in police work is taken into account in formulating the standard of care, not whether a duty of care arises.

The discretionary nature of police work therefore provides no reason to deny the existence of a duty of care in negligence.

Police officers are like other professionals who are expected to exercise professional discretion and no compelling distinction lies between police and other professionals on this score.

Whilst admittedly, discretion, hunch and intuition have their proper place in police investigation, if one were to characterize police work as completely unpredictable and unbound by standards of reasonableness, such a characterization would deny the professional nature inherent in the police service.

Police exercise their discretion and professional judgment in accordance with professional standards and practices, consistent with the high standards of professionalism that society rightfully demands of police in performing their important and dangerous work.

In this respect, police officers are not unlike other professionals. Many professional practitioners exercise similar levels of discretion. The practices of law and medicine, for example, involve discretion, intuition and occasionally hunch.

Professionals in these fields are subject to a duty of care under applicable principles pertaining to professional negligence nonetheless, and the courts routinely review their actions in negligence actions without apparent difficulty.

Finally, when it comes to adjudication of an issue, courts are not in the business of second-guessing reasonable exercises of discretion by trained professionals. An appropriate standard of care allows sufficient room to exercise discretion without incurring liability in negligence. Professionals are permitted to exercise discretion.

What they are not permitted to do is to exercise their discretion unreasonably, particularly against the interests of the public.

(The writer is Coordinator, Air Transport Programmes International Civil Aviation Organization Canada)